21753 | Ga. Ct. App. | Mar 17, 1932
Lead Opinion
1. In an action of bail-trover, the petition must contain sueli a description of the property as to make it capable of identification and seizure. McElhannon v. Farmers Alliance Warehouse Co., 95 Ga. 670 (22 S. E. 686) ; McLennan v. Livingston, 108 Ga. 342 (33 S.E. 974" court="Ga." date_filed="1899-07-24" href="https://app.midpage.ai/document/mclennan-v-livingston-5569232?utm_source=webapp" opinion_id="5569232">33 S. E. 974) ; Collins v. West, 5 Ga. App. 429 (63 S.E. 540" court="Ga. Ct. App." date_filed="1909-01-27" href="https://app.midpage.ai/document/collins-v-west-5603401?utm_source=webapp" opinion_id="5603401">63 S. E. 540).
2. A description of the property as an “assortment of raincoats,” followed by a list of 23 coats, each of a different lot number and each of a “price” stated, was a compliance with the foregoing rule. Farmers Alliance Warehouse Co. v. McElhannon, 98 Ga. 394 (25 S.E. 558" court="Ga." date_filed="1896-05-04" href="https://app.midpage.ai/document/farmers-alliance-warehouse--commission-co-v-mcelhannon-5566814?utm_source=webapp" opinion_id="5566814">25 S. E. 558) ; Harper v. Richards, 120 Ga. 379 (47 S.E. 899" court="Ga." date_filed="1904-06-09" href="https://app.midpage.ai/document/jolly-v-matthews-5573437?utm_source=webapp" opinion_id="5573437">47 S. E. 899) ; Hicks v. Walker Brothers Co., 31 Ga. App. 395 (2 6) (120 S.E. 694" court="Ga. Ct. App." date_filed="1923-12-10" href="https://app.midpage.ai/document/hicks-v-walker-bros-5615742?utm_source=webapp" opinion_id="5615742">120 S. E. 694).
3. Where a trover suit is defective only because there is no allegation of title or of right of possession in the plaintiff, this defect may be cured by amendment. Ellison v. Georgia Railroad Co., 87 Ga. 691 (5, 6, 7) (13 S.E. 809" court="Ga." date_filed="1891-10-19" href="https://app.midpage.ai/document/ellison-v-georgia-railroad-5564333?utm_source=webapp" opinion_id="5564333">13 S. E. 809) ; Dunn v. Freeman, 24 Ga. App. 504 (101 S.E. 393" court="Ga. Ct. App." date_filed="1919-11-26" href="https://app.midpage.ai/document/dunn-v-freeman-5611923?utm_source=webapp" opinion_id="5611923">101 S. E. 393).
(а) Nothing to the contrary was ruled in Carter v. Vinson, 17 Ga. App. 469 (87 S.E. 692" court="Ga. Ct. App." date_filed="1916-01-11" href="https://app.midpage.ai/document/carter-v-vinson-5608218?utm_source=webapp" opinion_id="5608218">87 S. E. 692).
(b) The decision in the case of Selma, Rome &c. R. Co. v. Lacey, 49 Ga. 106 (2), holding that in order to admit of an amendment a valid cause of action must be set forth in the original declaration, was necessarily overruled by the decision in the Ellison case, supra. This is true for the reason that the decision in the case last mentioned, expressly overruled Martin v. Gainesville &c. Railroad, 78 Ga. 307, as well as “any and every other case” in conflict with the rulings then made, and the general reference to other cases must of necessity have included the Lacey case, because the decision in the Martin case was based directly upon the decision in that case.
(c) The conclusion reached in the present case is entirely consistent with the decisions in Davis v. Muscogee Mfg. Co., 106 Ga. 126 (32 S.E. 30" court="Ga." date_filed="1898-12-13" href="https://app.midpage.ai/document/davis-v-muscogee-manufacturing-co-5568817?utm_source=webapp" opinion_id="5568817">32 S. E. 30) ; Shepherd v. Southern Pine Co., 118 Ga. 292 (45 S.E. 220" court="Ga." date_filed="1903-07-01" href="https://app.midpage.ai/document/shepherd-v-southern-pine-co-5572679?utm_source=webapp" opinion_id="5572679">45 S. E. 220), in each of
4. On application of the above principles, the court did not err in allowing the petition to be amended, nor in thereafter overruling the general and special demurrers thereto.
Judgment affirmed.
Rehearing
ON MOTION EOR REHEARING.
It is contended in the motion for a rehearing that the decision rendered in this case is in direct conflict with the ruling in Carter v. Vinson, supra, and that it is a misconception to say that nothing to the contrary was ruled in that case. The petition in that case, as in the present case, contained no allegation of title or right of possession in the plaintiff, and the court held that the petition for this reason failed to set forth a cause of action. But it was not held that the petition could not be amended so as to cure the defect, the decision being that the amendment was insufficient for this purpose. The ruling that the particular amendment was insufficient to remedy the defect appears to have been based chiefly upon a construction of the amendment, and not so much upon the idea that the petition was not amendable; and even if the court may have been incorrect in holding that the particular amendment was not allowable, our ruling here is not in conflict with the decision in that case. Moreover, in any view, we are bound by the decisions of the Supreme Court as precedents, and it is our opinion that under the authority of Ellison v. Georgia Railroad Co., supra, it must be held that the petition in the present case could be amended by alleging title or right of possession in the plaintiff. There is no merit in the other contentions made in the motion for a rehearing.
Rehearing denied.